COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Willis 

SAFEWAY STORES, INC. 

 MEMORANDUM OPINION*

v. Record No. 1598-97-4 PER CURIAM 

 NOVEMBER 18, 1997 

TAMMIE DANISE RULE 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Kevin J. O'Connell; O'Connell & O'Connell, 

on brief), for appellant. 

 (James F. Green; Ashcraft & Gerel, on brief), 

for appellee. 

 Safeway Stores, Inc. (employer) appeals a decision of the 

Workers' Compensation Commission denying its application alleging 

a change in condition. Employer contends that the commission 

erred in finding that Tammie Danise Rule was not released to 

return to her pre-injury work. We affirm the commission's 

decision. 

 The commission held that Dr. Jeffrey P. Rosen's August 21, 

1996 medical report did not prove that Rule was fully capable of 

carrying out all of the duties of her pre-injury employment. The 

commission based that holding upon the following findings: 

 Dr. Rosen indicated that [Rule] should 

undergo a three- to four-week rehabilitative 

program for her ankle. However, if this 

program was not approved by the insurance 

carrier, then she would be released to 

regular work. If we found this statement to 

be a full-duty release, the carrier, and not 

the physician, would control medical 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
 2 

management and treatment. It is not the 

carrier's privilege to determine necessary or 

appropriate treatment, but rather the 

treating physician's duty. The claimant has 

not reached medical improvement because she 

has not yet undergone the recommended 

treatment. 

 Even should we hold that this medical 

report is not ambiguous, it still does not 

qualify as a full-duty release. A mere 

statement that [Rule] can return to work does 

not meet the burden of the moving 

party. . . . There is insufficient proof 

that [Rule] is able to perform all of her 

preinjury duties. 

 "General principles of workman's compensation law provide 

that '[i]n an application for review of any award on the ground 

of change in condition, the burden is on the party alleging such 

change to prove his allegations by a preponderance of the 

evidence.'" Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 

459, 464, 359 S.E.2d 98, 101 (1987) (quoting Pilot Freight 

Carriers, Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d 570, 

572 (1986)). The commission's factual findings are binding and 

conclusive upon us, when they are supported by credible evidence. 

See Code § 65.2-706; James v. Capitol Steel Constr. Co., 8 Va. 

App. 512, 515, 382 S.E.2d 487, 488 (1989). Thus, unless we can 

say as a matter of law that employer proved that Rule was fully 

capable of returning to her pre-injury employment, we must affirm 

the commission's decision. See Tomko v. Michael's Plastering 

Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970). 

 The commission articulated legitimate reasons for finding 

Dr. Rosen's report ambiguous and for giving it little probative 
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weight. Dr. Rosen's conclusion that Rule could return to work 

was conditioned upon his finding that she should first undergo 

"an aggressive physical therapy program." However, Dr. Rosen 

noted Rule's concern that her employer might not consent to the 

recommended physical therapy program. Dr. Rosen also noted that 

he had informed the employer of his recommendation and states 

that "[f]rom an orthopaedic standpoint once she completes her 

physical therapy program, she will be at a point of maximum 

medical improvement with no impairment from any of her previous 

injuries." Recognizing that the employer might refuse to pay for 

the therapy, Dr. Rosen states that "if the [employer denies] the 

patient's physical therapy . . . then I would place her at a 

point of maximum medical improvement." The language of the 

report supports the commission's finding that the report 

impermissibly surrendered medical management of Rule's claim to 

employer. 

 In light of these reasons, the commission was entitled to 

conclude that Dr. Rosen's report did not constitute sufficient 

evidence to prove that Rule was capable of carrying out all of 

the duties of her pre-injury employment. "Medical evidence is 

not necessarily conclusive, but is subject to the commission's 

consideration and weighing." Hungerford Mechanical Corp. v. 

Hobson, 11 Va. App. 675, 677, 401 S.E.2d 213, 215 (1991). 

 Because the medical evidence was subject to the commission's 

factual determination and credibly supports the commission's 
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findings, we cannot find as a matter of law that the evidence 

proved that as of August 21, 1996, Rule was capable of returning 

to her pre-injury employment. Accordingly, we affirm the 

commission's decision. 

 Affirmed.